LANGSTON v. NASH

Supreme Court of Georgia1941-06-16No. No. 13742

192 Ga. 427

Summary · law.co

Holding. The trial court correctly refused to adjudge the former husband in contempt for nonpayment of permanent alimony because the underlying 1926 alimony decree was void for lack of subject-matter jurisdiction, and a void judgment cannot serve as the basis for contempt proceedings. The judgment was affirmed.

A former husband was charged with contempt for failing to pay permanent alimony ordered in a 1926 divorce decree. The court examined whether that original alimony judgment was valid. The judgment had been entered at the appearance term rather than at trial, and under the law existing in 1926, such judgments lacked jurisdiction and were void. Although a 1935 statute later validated certain alimony judgments rendered at the appearance term, it applied only to judgments actually rendered at that term—not to ones rendered before the appearance term, as in this case. The void judgment could not serve as a foundation for contempt proceedings.

The court explained that subject-matter jurisdiction cannot be created by the parties' agreement, waiver, or estoppel. Even though the former husband had paid alimony for years without objecting and the former wife later unsuccessfully sought to modify the judgment, these actions did not cure the fundamental jurisdictional defect. A void judgment cannot gain validity through subsequent payments, attempted modifications, or the passage of time. Accordingly, the court properly declined to hold the former husband in contempt based on an order that lacked legal authority.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a trial court may render permanent alimony judgments at the appearance term before 1935
Whether subsequent payments, modifications, or failure to object can validate a jurisdictionally void judgment
Whether subject-matter jurisdiction can be conferred by consent or estoppel
Whether a void judgment can support contempt proceedings

Procedural posture

The case involves a contempt proceeding brought against a former husband for failure to pay permanent alimony under a 1926 divorce decree that was challenged as void for lack of subject-matter jurisdiction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jenkins, Justice.

1. The superior court is “without jurisdiction to render a judgment for permanent alimony . . before the appearance term; . . such jurisdiction [can] not be conferred by consent of the parties;” and such a judgment, “being void for lack of jurisdiction, [can] not be the basis of contempt proceedings against the defendant for failure to pay permanent alimony.” Seigler v. Seigler, 181 Ga. 310 (181 S. E. 822). Until the act of 1935 (Ga. L. 1935, p. 481; Ann. Code, §§ 30-131, 30-132), which authorized all judgments in divorce cases to be taken “at the first or appearance term,” and declared that such past judgments should be “legal and binding,” the same as if rendered at the trial term, a judgment for permanent alimony rendered at the appearance term was likewise void; and the fact appearing on the face of the record, the decree was on its face void for want of jurisdiction of the subject-matter, and could be attacked even collaterally in any court. See Kantzipper v. Kantzipper, 179 Ga. 850, 852 (177 S. E. 679); Fleming v. West, 98 Ga. 778 (27 S. E. 157); Code, § 110-709. The present contempt proceeding involving a permanent-alimony judgment in 1926, which was rendered before the appearance term, and the acts seeking to validate only such past judgments as had been rendered “at” that term, the judgment could not be affected by the act, and was void for want of jurisdiction of the subject-matter, and could not afford .any legal basis for a contempt proceeding. While this court has recognized the validity of judgments for permanent alimony based merely on agreements of the parties without embodiment in the final verdict and decree, and the power of the trial court to modify •such judgments at later terms if the right to do so has been reserved therein, it has not been held that a subsequent proceeding to modify or to adjudge the husband in contempt need not be grounded on a valid original judgment. See Hardy v. Pennington, 187 Ga. 523, 525 (1 S. E. 2d, 667); Estes v. Estes, 192 Ga. 94, 100 (14 S. E. 2d, 680, 681).

2. Jurisdiction of the subject-matter of a suit can not be conferred by agreement or consent, or be waived or “based on an estoppel of a party to deny that it exists.” Parker v. Travelers Insurance Co., 174 Ga. 525, 529 (163 S. E. 159); Cutts v. Scandrett, 108 Ga. 620, 633 (34 S. E. 186); Smith v. Ferrario, 105 Ga. 51, 53 (31 S. E. 38); Watson v. Pearre, 110 Ga. 320 (35 S. E. 316); Code, § 24-112; 14 Am. Jur. 386, § 191; 21 C. J. S. 161-163, §§ 108, 109, and cit.; 15 C. J. 809, § 105. Whatever might be the rule as to res judicata or estoppel where a party has particularly invoked a decision and obtained one adverse to himself on the question of the court’s own jurisdiction of the subject-matter, without excepting to such decision (see Luther v. Clay, 100 Ga. 236, 28 S. E. 46, 39 L. R. A. 95; American Grocery Co. v. Kennedy, 100 Ga. 462, 465, 28 S. E. 241; 21 C. J. S. 177, § 115), a judgment which is void for want of jurisdiction of the subject-matter will not of itself afford any basis for applying the doctrine of res judicata. Dix v. Dix, 132 Ga. 630 (3), 632 (64 S. E. 790); Cornett v. Ault, 124 Ga. 944 (2) (53 S. E. 460); Barrs v. State, 22 Ga. App. 642, 644 (97 S. E. 86), and cit.; 30 Am. Jur. 939, § 198. Nor will the basis of subsequent orders or proceedings on such a void judgment infuse it with a validity which it lacks. 31 Am. Jur. 91, §§ 430, 431. Accordingly, where, as in this case, a judgment for permanent alimony was void because of lack of jurisdiction of the subject-matter, “the fact that the plaintiff . . brought a petition to modify the judgment, in which he was unsuccessful, and where he filed no exception, will not create such a ratification of the judgment as will make valid that which was void.” And “the fact that the [former] husband, without excepting to the original judgment, has paid alimony in pursuance of the judgment for several years can not affect the result.” Jones v. Jones, 181 Ga. 747 (6), 752 (184 S. E. 271); Pace v. Berquist, 173 Ga. 112, 114 (159 S. E. 678); Haygood v. Haygood, 190 Ga. 445, 449, 451 (9 S. E. 2d, 834). In Seigler v. Seigler, supra, involving a like void judgment, the record shows that the husband continued to make the ordered weekly payments for nearly ten months before attacking the judgment as void in response to a contempt proceeding. Especially would there be no estoppel where, as here, there is no showing by the former wife that she suffered any injury by reason of the husband’s procedure or payments under the judgment. See Code, § 38-116; Rieves v. Smith, 184 Ga. 657, 664 (192 S. E. 372), and cit.; Union Brokerage Co. v. Beall, 30 Ga. App. 748 (119 S. E. 533), and cit.; Sentinel Fire Insurance Co. v. McRoberts, 50 Ga. App. 732 (2), 737, 738 (179 S. E. 256); Franklin Savings Co. v. Branan, 54 Ga. App. 363 (4), 367 (188 S. E. 67).

3. Under the preceding rulings, the court did not err in refusing to adjudge the former husband in contempt for failing to pay permanent alimony under the void decree.

Judgment affirmed.

All the Justices concur.